Armed Forces Bill (HC Bill 202)

Continue the Armed Forces Act 2006; to amend that Act and other enactments relating to the armed forces and the Ministry of Defence Police; to amend the Visiting Forces Act 1952; to enable judge advocates to sit in civilian courts; to repeal the Naval Medical Compassionate Fund Act 1915; to make provision about the call out of reserve forces; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Duration of Armed Forces Act 2006

1Duration of Armed Forces Act 2006

“382Duration of this Act

(1)5This Act expires at the end of one year beginning with the day on which the Armed Forces Act 2011 is passed (but this is subject to subsection (2)).

(2)Her Majesty may by Order in Council provide that, instead of expiring at the time it would otherwise expire, this Act shall expire at the end of 10a period of not more than one year from that time.

(3)Such an Order may not provide for the continuation of this Act beyond the end of the year 2016.

(4)No recommendation may be made to Her Majesty in Council to make an Order under subsection (2) unless a draft of the Order has been laid 15before, and approved by resolution of, each House of Parliament.”

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Armed forces covenant report

2Armed forces covenant report

After section 359 of AFA 2006 insert—

“359A Armed forces covenant report

(1)5The Secretary of State must in each calendar year—

(a)prepare an armed forces covenant report; and

(b)lay a copy of the report before Parliament.

(2)An armed forces covenant report is a report about effects of membership, or former membership, of the armed forces on service 10people, or particular descriptions of such people—

(a)in the fields of healthcare, education and housing; and

(b)in such other fields as the Secretary of State may determine.

(3)In preparing an armed forces covenant report the Secretary of State must have regard in particular to—

(b)the principle that it is desirable to remove disadvantages arising for service people from membership, or former membership, of the armed forces; and

(c)20the principle that special provision for service people may be justified by the effects on such people of membership, or former membership, of the armed forces.

(4)An armed forces covenant report must state whether, in the Secretary of State’s opinion, any effects covered by the report are such that 25service people or particular descriptions of service people are at a disadvantage as regards the field or fields in question, when compared with other persons or such descriptions of other persons as the Secretary of State considers appropriate.

(5)Where the Secretary of State’s opinion is that service people or 30particular descriptions of service people are at a disadvantage as mentioned in subsection (4), the report must set out the Secretary of State’s response to that.

(6)As regards effects covered by an armed forces covenant report—

(a)the Secretary of State must consider whether the making of 35special provision for service people or particular descriptions of service people would be justified; and

(b)where the Secretary of State considers that such provision would be justified, the report must contain a reference to that fact.

(7)40In this section “service people” means—

(a)members of the regular forces and the reserve forces;

(b)members of British overseas territory forces who are subject to service law;

(c)former members of any of Her Majesty’s forces who are 45ordinarily resident in the United Kingdom; and

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(d)relevant family members.

(8)In this section—

“British overseas territory force” means any of Her Majesty’s forces that is raised under the law of a British overseas territory;

5“membership or former membership” of a force, in relation to a person, includes any service in that force that that person is undertaking, undertook or may be expected to be called on to undertake;

“relevant family members” means such descriptions of persons 10connected with service members, or with persons who were service members, as the Secretary of State considers should be covered by a report or part of a report;

“service member” means a person who falls within any of paragraphs (a) to (c) of subsection (7).

(9)15In this section any reference to membership or former membership of the armed forces is to be read, in relation to a person who is—

(a)a service member, or

(b)a relevant family member by reason of connection with a person who is or was a service member,

20as a reference to the service member’s membership or former membership of a force mentioned in subsection (7).

(10)In relation to any particular description of service people covered by a report, the reference in subsection (2)(a) to the fields of healthcare, education and housing is to such of those fields as the Secretary of State 25considers are ones in which people of that description are affected by membership or former membership of the armed forces.”

Service Police and Ministry of Defence Police

3Provost Marshal’s duty in relation to independence of investigations

After section 115 of AFA 2006 insert—

30“Provost Marshal’s duty in relation to independence of investigations

115A Provost Marshal’s duty in relation to independence of investigations

(1)This section applies in relation to each service police force.

(2)The Provost Marshal of the force has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the force 35are free from improper interference.

(3)“Improper interference” includes, in particular, any attempt by a person who is not a service policeman to direct an investigation which is being carried out by the force.”

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4Inspection of service police investigations

After section 321 of AFA 2006 insert—

“CHAPTER 4AInspection of service police investigations

321AInspection of service police investigations

(1)5Her Majesty’s Inspectors of Constabulary (“the inspectors”) are to inspect, and report to the Secretary of State on, the independence and effectiveness of investigations carried out by each service police force.

(2)In this section “investigations” means investigations of matters where service offences have or may have been committed, and includes 10investigations outside the United Kingdom.

(3)For the purposes of subsection (1) the inspectors may—

(a)undertake such number of inspections as they think appropriate;

(b)undertake inspections when they think it appropriate; and

(c)15decide which aspects of, or matters related to, investigations by a service police force are to be the subject of a particular inspection;

but this is subject to subsection (4).

(4)The Secretary of State may at any time require the inspectors to inspect, 20and report to the Secretary of State on, any or all of the following—

(a)the independence of investigations carried out by a particular service police force;

(b)the effectiveness of such investigations;

(c)a particular aspect of, or matter related to, such investigations.

321B25Inspectors’ reports to be laid before Parliament

(1)The Secretary of State must lay before Parliament each report made under section 321A.

(2)The Secretary of State may exclude from a report laid before Parliament under this section any material whose publication, in the Secretary of 30State’s opinion—

(a)would be against the interests of national security; or

(b)might jeopardise the safety of any person.”

5Provost Marshals: appointment

(1)After section 365 of AFA 2006 insert—

35“Provost Marshals

365AProvost Marshals: appointment

(1)No appointment of a person to be Provost Marshal of a service police force may be made except by Her Majesty.

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(2)To be eligible for appointment as a Provost Marshal, a person must be a provost officer.”

6Ministry of Defence Police: performance regulations

In section 3A of the Ministry of Defence Police Act 1987 (regulations relating to 5disciplinary matters), in each of subsections (1)(a) and (1A) after “conduct” insert “, efficiency and effectiveness”.

Powers of entry, search and seizure

7Power of judge advocate to authorise entry and search

For section 83 of AFA 2006 (power of judge advocate to authorise entry and 10search) substitute—

“83Power of judge advocate to authorise entry and search

(1)On an application made by a service policeman, a judge advocate may, if the relevant requirements are met, issue a warrant authorising a service policeman to enter and search—

(a)15one or more sets of premises specified in the application; or

(b)any relevant residential premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified.

(a)(a)one or more sets of premises specified in the application; or

(b)20any relevant residential premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified.

(2)The relevant requirements are met (subject to subsection (3)) if the judge advocate is satisfied that each set of premises specified in the 25application is relevant residential premises and that there are reasonable grounds for believing—

(a)that a relevant offence has been committed;

(b)that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of 30the offence is—

(i)in the case of a warrant authorising entry and search of specified premises, on those premises;

(ii)in the case of a warrant authorising entry and search of any relevant residential premises occupied or controlled 35by a specified person, on one or more sets of such premises occupied or controlled by that person;

(c)that the material would be likely to be admissible in evidence at a trial for the offence;

(d)that it does not consist of or include items subject to legal 40privilege, excluded material or special procedure material; and

(e)that at least one of the conditions specified in subsection (4) applies in relation to each set of premises specified in the application.

(3)If the application is for a warrant authorising entry and search of any 45relevant residential premises occupied or controlled by a specified person, the judge advocate must also be satisfied—

(a)that, because of the particulars of the offence mentioned in subsection (2)(a), there are reasonable grounds for believing that in order to find the material mentioned in subsection (2)(b)

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it is necessary to search relevant residential premises that are occupied or controlled by the person in question and are not specified in the application; and

(b)that it is not reasonably practicable to specify in the application 5all the relevant residential premises that the person occupies or controls and that might need to be searched.

(4)The conditions mentioned in subsection (2)(e) are—

(a)that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)10that it is practicable to communicate with a person entitled to grant entry to the premises, but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c)that entry to the premises will not be granted unless a warrant 15is produced;

(d)in the case of service living accommodation within section 96(1)(b) or (c)—

(i)that it is not practicable to communicate with the person or (as the case may be) any of the persons for whom the 20accommodation is provided; or

(ii)that there is no such person with whom it is practicable to communicate who will agree to grant access to the accommodation without the production of a warrant;

(e)that the purpose of a search may be frustrated or seriously 25prejudiced unless a service policeman arriving at the premises can secure immediate entry to them.

(5)A warrant under this section may authorise entry to and search of premises on more than one occasion if, on the application for the warrant, the judge advocate is satisfied that it is necessary to authorise 30multiple entries in order to achieve the purpose for which the warrant is issued.

(6)If the warrant authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(7)A service policeman may seize and retain anything for which a search 35has been authorised under subsection (1).”

8Power to make provision about access to excluded material etc

(1)Section 86 of AFA 2006 (power to make provision about access to excluded material etc) is amended as follows.

(2)For subsections (1) and (2) substitute—

“(1)40The Secretary of State may by order make provision that enables a service policeman, for the purposes of an investigation of a relevant offence and by making an application to a judge advocate in accordance with the order—

(a)to obtain access to excluded material or special procedure 45material on relevant residential premises; or

(b)to obtain access to material (other than items subject to legal privilege) on premises other than relevant residential premises.

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(2)An order under this section (an “enabling order”) may in particular—

(a)so far as it relates to obtaining access to material on relevant residential premises, make provision equivalent to any provision of Schedule 1 to PACE (special procedure for 5obtaining production orders and warrants);

(b)so far as it relates to obtaining access to material on premises other than relevant residential premises, make provision equivalent to any provision of paragraphs 1 to 11 of that Schedule (special procedure for obtaining production orders);

(c)10make provision equivalent to section 311(2) and (3) of this Act (certification to civil court of offences akin to contempt) in relation to a failure by a person within section 309(6) to comply with an order made by a judge advocate under the enabling order;

(d)15authorise the use, in connection with any application made by virtue of the enabling order, of live television or telephone links or similar arrangements.

(2A)Any power under subsection (2) to make provision which is equivalent to another provision includes power to make provision which is 20equivalent subject to such modifications as the Secretary of State considers appropriate.”

(3)For subsection (4) substitute—

“(4)In this section the following expressions have the meanings given by section 84—

25“excluded material”;

“items subject to legal privilege”;

“relevant offence”;

“special procedure material”.”

Alcohol and drugs

930Unfitness through alcohol or drugs

In section 20 of AFA 2006 (unfitness or misconduct through alcohol or drugs), after subsection (1) insert—

“(1A)For the purposes of subsection (1) a person is to be taken to be unfit to be entrusted with his duty, or a duty which he might reasonably expect 35to be called upon to perform, if his ability to carry out the duty in question is impaired.”

10Exceeding alcohol limit for prescribed safety-critical duties

After section 20 of AFA 2006 insert—

“20AExceeding alcohol limit for prescribed safety-critical duties

(1)40A person subject to service law (“P”) commits an offence if the proportion of alcohol in P’s breath, blood or urine exceeds the relevant limit at a time when P—

(a)is performing, or purporting to perform, a prescribed duty; or

(b)might reasonably expect to be called on to perform such a duty.

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(2)In subsection (1) “prescribed duty” means a duty specified, or of a description specified, by regulations; but a duty or description may be specified only if performing that duty (or a duty of that description) with ability impaired by alcohol would result in a risk of—

(a)5death;

(b)serious injury to any person;

(c)serious damage to property; or

(d)serious environmental harm.

(3)In this section “the relevant limit”, in relation to a duty specified or of a 10description specified by regulations, means the limit prescribed by regulations in relation to that duty or duties of that description.

(4)In this section “regulations” means regulations made by the Defence Council for the purposes of this section.

(5)A person guilty of an offence under this section is liable to any 15punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.”

11Testing for alcohol and drugs on suspicion of offence

(1)After section 93 of AFA 2006 insert—

“CHAPTER 3A20Testing for alcohol and drugs on suspicion of offence

Preliminary testing for alcohol and drugs

93ACommanding officer’s power to require preliminary tests

(1)This section applies where the commanding officer of a person subject to service law has reasonable cause to believe that that person—

(a)25is committing a relevant offence; or

(b)has committed a relevant offence and still has alcohol or a drug in the body or is still under the influence of a drug.

(2)In this section “relevant offence” means—

(a)an offence under section 20A; or

(b)30an offence under section 20(1)(a) in respect of a safety-critical duty (as defined by section 93I).

(3)This section also applies where the commanding officer of a person who is a civilian subject to service discipline has reasonable cause to believe that that person—

(a)35is committing an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 78, 79, 92 or 93 of the Railways and Transport Safety Act 2003 (maritime and aviation offences); or

(b)has committed such an offence under section 42 and still has 40alcohol or a drug in the body or is still under the influence of a drug.

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(4)The commanding officer may require the person mentioned in subsection (1) or (3) (“the suspected person”) to co-operate with any one or more of—

(a)a preliminary breath test (see section 93B);

(b)5a preliminary impairment test (see section 93C);

(c)a preliminary drug test (see section 93D).

(5)The Defence Council may by regulations provide for the delegation by a commanding officer of the commanding officer’s functions under this section.

(6)10A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (4) commits an offence.

(7)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two 15years.

(8)For the purposes of this section, a person does not co-operate with a preliminary test unless the person’s co-operation—

(a)is sufficient to enable the test to be carried out; and

(b)is provided in such a way as to enable the objective of the test to 20be satisfactorily achieved.

93BPreliminary breath test

(1)A preliminary breath test is a procedure administered by a service policeman under which—

(a)the suspected person provides a specimen of breath; and

(b)25the specimen is used for the purpose of obtaining, by means of an approved device, an indication whether the proportion of alcohol in the person’s breath or blood is likely to be such as is necessary for the commission of the suspected offence.

(2)A preliminary breath test may be administered only—

(a)30at or near the place where the requirement to co-operate with the test is imposed;

(b)at a service police establishment determined by the service policeman; or

(c)at a medical establishment.

(3)35In this section “the suspected offence” means an offence mentioned in section 93A(2) or (3)(a) which the commanding officer has reasonable cause to believe has been committed.

93CPreliminary impairment test

(1)A preliminary impairment test is a procedure under which a service 40policeman—

(a)observes the suspected person performing tasks specified by the service policeman; and

(b)makes such other observations of the suspected person’s physical state as the service policeman thinks expedient.